Following the request of the Verkhovna Rada’s Committee on Law Enforcement, the Council of Europe (CoE) has provided the expert support to the on-going process of resolving problematic issues of the criminal responsibility of judges for deliberately unjust judgments.

Subsequent to the decision of the Constitutional Court of Ukraine finding Article 375 of the Criminal Code (which prescribed criminal responsibility of judges for deliberately unjust judgments) unconstitutional, the CoE conducted a thematic research and developed two reports which were shared with the Law Enforcement Committee:

1. Review of the Council of Europe standards related to the liability of judges regarding unlawful judicial decisions, by Judge Ðuro Sessa, who is the ex-President of the Consultative Council of European Judges (CCJE), a member of the CCJE Bureau and the President of the Supreme Court of Croatia (download here);
2. Comparative paper on criminal responsibility of judges for unjust decisions, by prof. Kanstantsin Dzehtsiarou (University of Liverpool) and Mr. Francesco Clementucci which compared the approach of England and Wales, France, Italy, Moldova, Poland and Spain on dealing with the criminal responsibility of judges (download here).

On 23 November 2020, the CoE conducted expert consultations for the national authorities of Ukraine in order to present the finding of the abovementioned research papers and facilitate a professional discussion among the key stakeholders. National authorities were represented by Mr. Denys Monastyrskyi, Head of the Law Enforcement Committee; Mr. Stanislav Kravchenko, Head of the Criminal Cassation Court of the Supreme Court; Ms. Larysa Shvetsova, a member of the High Council of Justice; Mr. Viktor Ostapuc, member of the Council of Judges of Ukraine; Mr. Roman Hovda, First Deputy Prosecutor General of Ukraine as well as other members of the Ukrainian legislature and judiciary.

The Council of Europe was represented by Ms. Olena Lytvynenko, Deputy Head of the Council of Europe Office in Ukraine; Mr. Tigran Karapetyan, Head of Unit of the Eastern Partnership and Russian Federation of the Directorate General of Human Rights and Rule of Law, Mr. Andriy Kavakin, Project Coordinator of Legal Cooperation Department, Directorate General of Human Rights and Rule of Law  and the Council of Europe international consultants Judge Ðuro Sessa and prof. Kanstantsin Dzehtsiarou. The event was moderated by Iryna Kushnir, manager of the Council of Europe Project “Support to the implementation of the Judicial Reform in Ukraine”.

During the expert consultations, the CoE international consultants presented main findings of the respective research papers. While there is no unified approach to the criminal responsibility of judges for deliberately unjust decisions, the majority of the European states do not have a specific criminal responsibility for this and solve the problems of judicial integrity via general criminal responsibility applicable to all state servants (such as abuse of authority, bribes, etc.) as well as by means of disciplinary and civil responsibility.

Following the presentations, the participants asked international consultants specific questions and expressed their opinions on the matter. The discussions during the event were fruitful as, while the CoE consultants and representatives reminded the national stakeholders about the relevant CoE standards, all participating agencies had an opportunity to share their arguments and concerns with the members of the Law Enforcement Committee, who play a key role in finding an appropriate legislative solution of the issue of criminal responsibility of judges for deliberately unjust judgments.

The research and the event were conducted under the auspices of the CoE projects “Support to the implementation of the Judicial Reform in Ukraine” and “Human Rights Compliant Criminal Justice System in Ukraine” which are part of the CoE Action Plan for Ukraine 2018-2022.